Indigenous people in New South Wales continue to be targeted and prosecuted under the Fisheries Management Act for participating in traditional Aboriginal fishing practices, leading to disconnection from Country, loss of intergenerational knowledge and adverse health outcomes.

Indigenous environmental management practices and cultural traditions

Indigenous Australians have managed their lands and waters for millennia, ensuring that traditional knowledge and traditional activities such as fishing and hunting continue to be passed from generation to generation.

Indigenous environmental management practices are intricate and nuanced. This traditional knowledge has developed over thousands of years of environmental management practices and remains critical to protecting Australia's unique ecosystems.

Therefore, it is implausible to suggest that Indigenous people would actively cause harm to the Australian environment through unsustainable fishing.

However, tension exists between Indigenous users and government agencies because of the fundamental conflict between environmental conservation, resource management and Indigenous protection.

Cultural significance of fishing to Aboriginal and Torres Strait Islander people

Fishing is of particular cultural importance to Aboriginal and Torres Strait Islander people. Fishing supports connections to community, family and culture. It also enables individuals to provide for their extended families and barter fish for other goods.

Fishing has always been a critical component of the relationship between ATSI communities and Country.

Fishing is also one of Australia's favourite pastimes and part of our national identity. Recreational fishing is estimated to add more than $11 billion to the economy annually.

Prosecution of Indigenous fishers for exceeding bag limits and catch limits

Australia's fisheries are protected through laws specifying the maximum quantity of fish of a specified species (bag limit) or class that a person may take on any one day (catch limit), enforceable through fines, confiscation of gear and jail terms for the most serious offences.

Unfortunately, First Australians feel the full force of these laws all too often. For example, although Aboriginal people only make up approximately three per cent of NSW's population, they have accounted for approximately 33% of fishing-related prosecutions since 2009. Sadly, Indigenous Australians are nearly ten times more likely to be jailed than non-Indigenous people.

Many of these prosecutions target First Nations people conducting traditional Aboriginal fishing activities. Many of these cultural fishers believed they were exempt from prosecution. While some defences are available to Indigenous fishers charged under the NSW Fisheries Management Act 1994 ("FMA"), these defences often provide little meaningful protection.

Case study: prohibitive legal fees and fear of a custodial sentence

The criminal trial of a 21-year-old Aboriginal man, Anthony Henry, emphasises the impacts of needless prosecutions against First Nations fishers.

In 2019, Mr Henry was charged with possessing abalone exceeding the authorised bag limit. His trial took four years to be finalised. During this time Mr Henry could not participate in his traditional and cultural fishing activities due to fear of further prosecution.

Mr Henry held a valid claim to his cultural land under the Native Title Act 1993 (Cth) ("NTA"), but unfortunately, the cost of funding a technical and complicated defence under the NTA was beyond the financial means of Mr Henry, who had already borrowed $10,000 to fund his case. It is estimated that a further $30,000 to $40,000 was required to mount a defence under the NTA, which would likely involve barristers and expert witnesses.

Facing substantial costs that were out of his reach and in fear of receiving a custodial sentence, Mr Henry pleaded guilty and received a 12-month Community Corrections Order and an order to complete 50 hours of community service.

He also had to pay more than $13,000 in legal costs. Perhaps the most concerning penalty was that Mr Henry was banned from collecting abalone, a significant cultural activity, for two years.

Beyond the personal impacts on Indigenous fishers, criminal prosecutions have long-lasting effects on local Aboriginal communities. These prosecutions create needless fear and concern amongst Indigenous people participating in traditional cultural activities.

The over-representation of Indigenous people in fishing-related prosecutions is magnified in regional areas, such as the far south coast of NSW, as Aboriginal Land Council representative Danny Chapman explains:

It really distresses me that the government seeks to focus on Aboriginal people in these areas, knowing full well that Aboriginal people have undertaken these [cultural fishing] activities for all of their lives. in my view, the [government] would rather send us to jail rather than taking into account our cultural activity. which I think is extremely sad.

Permit system an impractical solution

A potential defence against fishing-related prosecutions is found within the permit system empowered by section 37(1)(d) of the Fisheries Management Act.

One community concern about this system is the amount of information required, when the exact date of fishing may not be known at the time of application. Another concern is the slow, complicated nature of the process.

The necessity of having the resources and foresight to obtain a permit makes this an impractical solution which does not provide meaningful protection for Aboriginal fishing practices.

Indigenous property rights under Native Title Act

Property law in Australia is often described as a "bundle of rights" in terms of connection to land and the complex nature of "ownership". Indigenous property rights are arguably enshrined and protected under the NTA and include access to traditional lands and waters to hunt, fish and hold meetings and ceremonies.

However, it is important to note that native title does not provide exclusive ownership. Indigenous property and access rights are often extinguished by competing land rights founded under British tenure.

As indicated in the case Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283, discussed below, the NTA will prevail when a conflict exists between state and Commonwealth law.

Therefore, section 211(2) of the NTA has the effect of suspending the operation of state legislation so that the rights and entitlements of native title holders are protected in the instance of legislative conflict.

Section 211(2) of the NTA can protect Indigenous fishers conducting their traditional fishing activities against prosecutions under NSW law. However, relying on this defence is often risky and relies heavily on both lay and expert evidence, as shown in Carriage, to explain unwritten lore to the court's satisfaction.

Case study: current defences fail to protect abalone fisher

Mr Carriage is a Walbunja man and native title holder from the Yuin Nation along the south coast of NSW. Mr Carriage was charged and found guilty of six offences under the FMA, mostly relating to the possession of abalone far exceeding the legal catch limit.

His appeal to the District Court was ultimately dismissed, mainly due to the unreliable evidence and factual inaccuracies given by Mr Carriage and his cousin, Mr Connolly.

In December 2017, Mr Carriage went swimming and fishing with his son and two cousins at a beach on the south coast of NSW, which he had often done since childhood. As a young boy, Mr Carriage would trade lobsters he caught for pocket money. But mostly, his father and brothers fished and dived in the local area, with his family eating what they caught.

Mr Carriage's family would occasionally sell the fish they caught for money or trade it for other goods. Once, his father swapped fish he had caught for new tyres for his car. Other times, his father traded the fish he caught for other types of food.

If the fish caught were sold for money, the money would be used to meet the family's needs. Otherwise, the fish caught would be shared with close and extended family members.

Traditional knowledge passed from generation to generation

Fishing was a key component of Mr Carriage's cultural identity and self-worth. He learnt traditional knowledge from his Elders. When Mr Carriage was a child, his father taught him how to fish and gather seafood from coastal reefs and rock ledges.

In turn, Mr Carriage passed that information on to his son and taught him "everything he knows about fishing and gathering". Mr Carriage explained that sharing knowledge is an important part of being a Walbunja man and part of the Walbunja Tribe.

Mr Carriage argued that he had a right to collect and harvest foods from local lands and waters because "they (the resources) had always been there, long before white settlement." Mr Carriage claimed his ancestors had fished and gathered food in the local lands and waters since time immemorial.

These claims could suggest that he was beyond the moral reach of British tenure and judicial enforcement. After all, Indigenous laws and customs have existed for thousands of years.

Traditional importance of conserving fish stocks

Indigenous Elder Leanne Parsons gave evidence supporting Mr Carriage's defence. Ms Parsons is an Indigenous woman belonging to the Walbunja people and the Bidawal people of the Yuin Nation. Ms Parson considered herself a "knowledge holder" and was familiar with the customs of her communities, which included hunting, gathering and collecting food from the ocean.

Ms Parsons understood the importance of conserving fish stocks. As a young child, she learnt what times of the year particular fish were more likely to be caught and what times of year the fish would spawn (so as not to target them).

Like Mr Carriage, Ms Parsons was taught by her mother to dive and gather food as a young girl. She stated that "taking food from the ocean was a significant part of life for the Walbunja Group. Food was taken from the ocean to feed everyone, forming the main part of our diet." Like Mr Carriage, she passed on her traditional knowledge to her grandchildren.

Common practice of trading fish catch for money or other food

Ms Parsons explained that her family often struggled financially, and she would trade their catch for other food or money. When challenged by the Crown during cross-examination, Ms Parsons indicated there was no traditional law stopping the trading of foods for money. She went on to explain:

I was brought up to survive. A part of that survival was selling. A part of that survival was trading or bartering or whatever we want to call it these days, but that's how we were brought up. And it was part of our practices. It was something that we've always done since I could remember, back when I was young. And I was taught that by my ancestors.

Indigenous fishers have a relationship with their lands and waters that most contemporary Australians cannot begin to understand.

Anthropologist's evidence confirms abalone fisher's claims

Anthropologist Dr Natalie Quoc provided expert evidence concerning the long history of ATSI people trading seafood and other foods with Indigenous and non-Indigenous people. She explained: "with large families and meagre monetary resources, most [Indigenous] families continued to rely substantially on the harvest of seafoods. These resources continue to form an important contribution to the economy today."

She also claimed that Indigenous fishing is traditionally governed by the maximum respect for the natural environment and that a "prime guiding principle is that people should only take what they need to feed themselves and their families and guests and that the species should not be depleted. Fishing activities were not aimed solely at individual consumption but to supply food to the household and the broader community."

Dr Quoc's evidence aligned closely with that of Elder Ms Parsons and Mr Carriage. Dr Quoc explained that ''the practices, beliefs, teachings and actions engaged in today by Yuin people reflect the continuance of Yuin customs and traditions passed down from generation to generation from a time before British colonisation."

Simply put, contemporary Indigenous fishing practices are guided by traditional knowledge passed from generation to generation. For example, taking abalone is subject to Indigenous knowledge of sustainable sizes and quotas. Traditional knowledge formed the basis of Indigenous resource management.

Traditional unwritten lore fails to pass scrutiny of contemporary legal system

Mr Carriage's defence failed, not because of his claim as a native title holder, but because the evidence given by Mr Carriage and his cousin, Mr Connolly, was unreliable. His Honour went as far as to suggest that Mr Connolly's evidence was "incredible and unreliable". Unfortunately, Mr Carriage's evidence was also considered unreliable and inconsistent by the standards of the British-based legal system.

However, it is absurd to suggest that a person in a foreign and intimidating courtroom, with limited financial means and legal knowledge, could easily explain and advocate for the traditional laws passed from generation to generation via drawings, dreaming and story for thousands of years.

It can be difficult to explain unwritten lore to the satisfaction of legislators and judges.

The court considered that "the App[licant]s evidence as to the events that day, has, even on the face of it, a certain implausibility and convenience about it as an answer to the Prosecution case."

Abalone fisher's "resentment" acts to his detriment in court

During cross-examination by the prosecution, it appeared that Mr Carriage's attitude and acceptance of his apparent right to disregard the legal size and catch limits were "not tied to traditional rules but arose out of resentment at the destruction white people had done to the natural resources".

Arguably, these inaccuracies and his apparent "attitude" are reasonable, given that Mr Carriage was defending himself against charges for practising his cultural activities, something those before him had done for millennia without question.

Ultimately, Mr Carriage failed to overcome the technical evidentiary onus to establish that Yuin's traditional laws and customs enabled a person to take large numbers of abalone of any size from any location. Therefore, he had failed to establish his claim that taking abalone was exercising a native title right, and his criminal defence had evaporated.

Punitive ban on cultural activities has profound negative impacts

Mr Carriage was found to have a commercial quantity of abalone in his possession, much greater than what a recreational fisher ought to have. Therefore, the court decided his conduct was "not an exercise of traditional laws and customs nor was it to satisfy personal, domestic or non-communal needs." The appeal was dismissed on all but one ground.

Following his court case, Mr Carriage has suffered from health problems, financial stress and other costly impacts due to his court proceedings.

Before the court proceedings, he claimed he weighed around 90 kilograms and was an active diver and fisher. However, since being banned from participating in cultural activities like diving, he cannot maintain his previously active lifestyle and now weighs nearly 150 kilograms, with a significant deterioration of his physical and mental health.

This case is just one example of the growing phenomenon of Indigenous fishers failing to establish a defence against fishing-related prosecutions in NSW. The consequences of these failings result in significant punishment, leading to a loss of culture and connection to Country for Australia's oldest inhabitants.

This loss of connection to Country is linked to poor physical and mental health across a broad spectrum of already disadvantaged people.

In essence, the bureaucratic enforcement of fishing laws acts in direct opposition to the supposed commitment of successive governments to "close the gap" in health outcomes, life expectancy and incarceration rates of Indigenous Australians as compared to the population overall.

Modern holistic management of environmental resources

Modern environmental resource management takes a more holistic approach to ensuring sustainable economic yields, improving environmental resilience against a changing climate and ensuring biological diversity.

There is an increased focus on taking a holistic approach to managing Australia's coastal resources by recognising traditional Indigenous culture and activities.

However, tension remains between Indigenous fishers and environmental agencies, where a fine line exists between protecting a valuable economic and biological resource and ensuring that Indigenous fishers have access to their culture, traditions and customs.

Hastings Aboriginal Cultural Fishing Local Management Plan (HLMP)

The Hastings Aboriginal Cultural Fishing Local Management Plan is one of two trial plans in northern NSW. This trial plan will be situated within the Hastings River catchment in Birpai and Bunyah Country.

The Hastings region is home to approximately 85,000 people, mainly located across the major population centres of Port Macquarie, Laurieton and Wauchope, covering an area from the New England Tablelands to the Pacific Ocean, including diverse terrestrial and marine environments such as open forests, grasslands, dense eucalypt forests and numerous creeks, rivers, lakes, lagoons, swamps and coastal waters.

The HLMP was developed in consultation and following feedback from a range of Indigenous stakeholders, including the Aboriginal Fishing Advisory Council, the Hastings Cultural Fishing Steering Committee, the Birpai Local Aboriginal Land Council, Bunya Local Aboriginal Land Council and various government agencies, including the NSW Department of Primary Industries.

The HLMP focuses on protecting culturally significant species in specific geographical and biological regions, ensuring fisheries management processes are culturally appropriate and recognising local practices.

The HLMP is empowered by ministerial direction under section 37(3)(b) of the Fisheries Management Act. The HLMP provides a potential defence to prosecution under sections 17 and 18 of the Act concerning the offences of possessing fish exceeding current catch quotas and size limits.

Reluctance to conduct traditional fishing activities due to fear of government agencies

While the HLMP is a step in the right direction, Indigenous fishers see the fisheries regulations as preventing them from doing what their ancestors have done for thousands of years.

Indigenous fishers recognise that Australian marine resources must be protected. However, they remain fearful of government agencies and are reluctant to conduct their traditional activities for fear of being unfairly targeted and investigated by fisheries officers.

As an anonymous Indigenous fisher explained:

If the community was to get together and develop a charter, they could get the resources and the money. They could then get hold of a scientist and say, "We want you to come up here and look at these stocks, these species and inform us what you think is the best take in terms of what's known in science." Then bring in what the traditional fisherman are saying and try to work the two together. Then use that as a basis for what might be a reasonable catching. It is doing basically what the fisheries have been.

The HLMP trial is a positive policy initiative. However, more can be done to protect Indigenous fishing and strengthen community engagement by introducing community-managed Indigenous Protected Areas along coastal NSW.

Achieving conservation and sustainability targets through Indigenous protected areas

Indigenous protected areas (IPAs) and similar community-led management programs provide unique policy pathways to protect Indigenous communities and fishers.

The first IPA was introduced in the late 1990s. Since then more than 80 IPAs have been implemented nationwide. IPAs empower First Australians to make rules and decisions about fishing resources, including catch quotas, size limits and fishing methods, with the support of government stakeholders.

However, as shown throughout the Hastings Aboriginal Cultural Fishing Local Management Plan trial, there is still friction between Indigenous fishers and government agencies because of the underlying conflict between numerous stakeholders in most modern fisheries.

Indigenous protected areas are supported by strong scientific principles to ensure that sustainability, resilience and conservation objectives are achieved while delivering social and economic benefits to Indigenous communities. Simply put, Indigenous protected areas can strengthen Indigenous communities and protect Indigenous fishers who are conducting their traditional activities.

One current example of a NSW-based IPA is Ngiyambandigay Gaagal, located in the Coffs Harbour region of NSW. This region is home to highly sensitive environmental receivers, including shallow and deepwater reefs, intermittingly opening and closing lakes and lagoons (ICOLLS) and delicate mangrove and estuarine environments.

While this IPA involves monitoring shorebird populations, undertaking cultural mapping works on coastal headlands and estuaries and assisting with developing catchment management plans, there is nothing to suggest that IPAs cannot be introduced to manage localised fisheries and marine reserves, such as those found along the NSW coastline.

Legislation protecting traditional Aboriginal fishing languishes for 14 years

We must find a timely solution to protect the cultural fishing practices and wellbeing of Aboriginal and Torres Strait Islander peoples, ensure knowledge and customs are shared with younger generations and ultimately reduce the number of Aboriginal and Torres Strait Islander people in prison.

Local Indigenous management plans may be the best policy to protect Indigenous fishing into the future, as they strengthen and empower communities to manage Country using traditional knowledge alongside current scientific methods and protect themselves from unjust fishing-related prosecutions.

Practical protection is within reach of our legislators. The most effective defence lies in the empowerment of section 21AA of the NSW Fisheries Management Amendment Act 2009.

As currently drafted, section 21AA states that "[a]n Aboriginal person is authorised to take or possess fish, despite sections 17 and 18, if the fish are taken or possessed for Aboriginal cultural fishing."

Although 14 years have passed since its introduction, section 21AA is yet to be enshrined in law. Commencing section 21AA would negate the need to rely on defences under the NTA or the permit system.

Queensland and the Northern Territory have already enacted similar legislation to section 21AA, providing meaningful protections to Aboriginal and Torres Strait Islander fishers.

The time is well overdue to empower section 21AA and finally offer a practical legal defence to Indigenous fishers participating in traditional cultural practices and customs in NSW, to ensure that their ancient connections to the lands and waters of Australia are maintained for future generations.

Dion Bull
Rural property and water rights
Stacks Law Firm

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